Holy Ghost Revival Ministries v. City of Marysville

Decision Date07 April 2015
Docket NumberCase No. C14–1154JLR.
Citation98 F.Supp.3d 1153
PartiesHOLY GHOST REVIVAL MINISTRIES, et al., Plaintiffs, v. CITY OF MARYSVILLE, et al., Defendants.
CourtU.S. District Court — Western District of Washington

Joshua Bruce Trumbull, Matthew K. Link, Scott E. Stafne, Stafne Trumbull LLC, Arlington, WA, for Plaintiffs.

Emily Grace Starr Guildner, Thom H. Graafstra, Weed, Graafstra and Benson, Inc., P.S., Snohomish, WA, Michael Charles Walter, Keating Bucklin & McCormack, Seattle, WA, for Defendants.


JAMES L. ROBART, District Judge.


Before the court is Defendants' motion to dismiss Plaintiffs' complaint under Federal Rule of Civil Procedure 12. (Mot. (Dkt. # 35).) This case arises from Defendant City of Marysville's (“the City”) enforcement of certain local zoning regulations against two of Plaintiffs' group housing residences. Having considered the submissions of the parties, the balance of the record, and the relevant law, and deeming oral argument unnecessary, the court grants in part and denies in part the motion to dismiss.


The following facts are set forth in Plaintiffs' amended complaint and attached exhibits. Plaintiffs John and Jane Mack (“the Macks”) are the primary pastors of Plaintiff Holy Ghost Revival Ministries (Holy Ghost Church). (Am. Compl. (Dkt. # 20) ¶¶ 1.1, 1.3.) As part of their “religious mission,” Plaintiffs operate group housing residences called “Mack Houses.” (Id. ¶ 1.4.) Mack Houses provide low-cost transitional housing to released convicts, some of whom are recovering from substance abuse or addiction. (Id. ¶¶ 1.2, 3.2.) A high number of residents, if not all residents, are registered sexual offenders. (See Compl. (Dkt. # 3) Ex. 2 at 4.) The residents at Mack Houses receive “teachings grounded in scripture,” and are required to abide by twelve-step programs and Department of Correction requirements. (Am. Compl. ¶ 3.3.) Plaintiffs refer to these residents as “church members,” and state that “spiritual growth and adherence to scripture by this particular population of the Holy Ghost Church's membership is best achieved by in [sic] a group living situation where all strive to do the Lord's will.” (Id. ¶¶ 3.2, 3.5.)

Plaintiffs currently operate ten Mack Houses in Snohomish County, six of which are located in Marysville. (Id. ¶ 3.8.) One Mack House, which is owned by the Macks, is located at 904 61st Street NE in Marysville, Washington (“61st Street Property”). (Id. ¶¶ 3.17, 3.20.) The Macks also use the 61st Street Property to store “large vehicles.” (Id. ¶ 3.18.)

Another Mack House, which is leased by Mr. Mack “d/b/a Holy Ghost Revival Ministries,” is located at 15324 Smokey Point Boulevard in Marysville (“Smokey Point Property”). (Id. ¶ 3.14.) Plaintiffs claim that this property is used primarily as an office for the Holy Ghost Church. (Id. ¶ 3.15.) However, this property also includes a unit where Mack House members live. (Id. )

In 2013, the Macks received an Enforcement Order from the City stating that the storage of large vehicles at the 61st Street Property violated the City's zoning code. (Id. ¶ 3.21; 61st Hearing (Dkt. # 35–2) at 2.) The Macks also received an Enforcement Order from the City stating that the Smokey Hill Property was an inappropriate residential use and occupancy of a building on a parcel of land zoned for General Commercial use. (Am. Compl. ¶ 3.22; Smokey Hearing (Dkt. # 35–1) at 2.)

Upon receiving the Enforcement Order for Smokey Point, Mr. Mack emailed the City a proposed renovated floorplan that he believed would qualify the residence as a caretaker's unit, which is a permitted use in a General Commercial zone. (Am. Compl. ¶ 3.23.) The City responded that Mr. Mack's appeal of the Enforcement Order would be resolved by the City's Hearing Examiner. (Id. ¶ 3.24.) Mr. Mack then sent a “Reasonable Accommodation Request” to the City, to no avail. (Id. ¶ 3.26.)

The Hearing Examiner held a hearing for each Enforcement Order, during which the Macks presented testimony and argument, but were not permitted to cross-examine witnesses or raise constitutional claims. (Id. ¶ 3.27.) The Hearing Examiner found that the Mack House at Smokey Point, which housed six to ten male registered sexual offenders at any given time, violated the restriction against single-family residential use in the General Commercial zone. (Smokey Hearing at 7); see also Marysville Municipal Code (“MMC”) 22C.020.060 (listing the permitted uses in areas zoned “General Commercial”). The Hearing Examiner also found that the Mack House did not qualify under the “Caretaker's Quarter's” exception to the restriction because the residents did not provide active surveillance of the adjoining businesses. (Smokey Hearing at 6–7.)

In addition, the Hearing Examiner found that the storage of tractors, semi-trailers, and other equipment at the 61st Property constituted a public nuisance. (61st Hearing at 10–11); see also MMC 6.24.050(7), (27).1 The Hearing Examiner also concluded that the Macks' predecessors had not established a prior non-conforming use. (61st Hearing at 9.)

As a result of the Hearing Examiner's decision, the Macks temporarily closed the Smokey Point Property in order to renovate it. (Am. Compl. ¶ 3.31.) The Macks provided housing to some of the members in the interim, but others were displaced. (Id. ) After the Macks finished renovating the Smokey Point Property to comply with the Hearing Examiner's decision, an unspecified number of members resumed living there. (Id. ¶ 3.32.) It appears that the Macks continue to store large equipment at the 61st Street Property. (Id. ¶¶ 3.33–3.34.)

The Plaintiffs allege that the City “has an official policy and/or procedure in place to discriminate against Holy Ghost Church and the Macks as a result of their religious beliefs.” (Id. ¶ 8.3.) Plaintiffs further allege that the Defendants (which include the City and various City officials) “encouraged and/or promoted citizen complaints in regards to the Mack Houses,” and “targeted properties owned by and/or rented by Holy Ghost Church and the Macks with the purpose of manufacturing and/or purporting land use violations.” (Id. ¶ 8.4.) Plaintiffs attach an email chain between City officials that “discussed what could be done to prevent the expansion of Mack Houses in the City.” (Id. ¶ 3.12.) The email chain does not once mention Plaintiffs' religious affiliation. (Id. Ex. 2.) It does, however, repeatedly evidence the City's concern regarding the accumulation of group housing for registered sexual offenders within the City. (See id. )

Plaintiffs appealed the Hearing Examiner's decision to the Snohomish County Superior Court. (Am. Compl. ¶ 3.29.) Plaintiffs original complaint included a petition under Washington's Land Use Petition Act, (“LUPA”), RCW ch. 36.70c, alleging that the Hearing Examiner's decision was incorrect. (Compl. (Dkt. # 3).) Defendants removed the action to this court. (Not. of Rem. (Dkt. # 1.) Plaintiffs then filed an amended complaint. (See Am. Compl.) The amended complaint did not include a LUPA claim. (See id. ) It did, however, allege claims under the Fair Housing Act (“FHA”), 42 U.S.C. § 3601 et seq., Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb et seq., Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc et seq., the Washington Constitution, and 42 U.S.C. § 1983. (See Am. Compl.) The basis for these claims is Plaintiffs' contention that the City selectively enforces its zoning ordinance against Plaintiffs on the basis of their religion. (See generally Am. Compl.)

Defendants brought a motion to dismiss Plaintiffs' amended complaint for lack of subject matter jurisdiction and for failure to state a claim. (See Mot.) Defendants' motion is now before the court.

A. Motion to Dismiss Standard

Defendants move to dismiss under Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). The court may dismiss a claim under Rule 12(b)(1) for lack of subject matter jurisdiction. See Fed.R.Civ.P. 12(b)(1). The burden of establishing subject matter jurisdiction rests upon the party asserting jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). A motion to dismiss for lack of subject matter jurisdiction can be facial or factual. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.2004). “In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction.” Id. This “confin[es] the inquiry to allegations in the complaint.” Savage v. Glendale Union High Sch., Dist. No. 205, Maricopa Cnty., 343 F.3d 1036, 1040 n. 2 (9th Cir.2003). By contrast, “in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.” Safe Air for Everyone, 373 F.3d at 1039. When considering a factual attack, the district court is not restricted to the face of the pleadings, but may review any evidence, including affidavits and testimony, without converting the motion into one for summary judgment. McCarthy v. United States, 850 F.2d 558, 560 (9th Cir.1988).

Under Rule 12(b)(6), a court must dismiss a complaint if it fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). In determining whether to grant a Rule 12(b)(6) motion, the court must accept as true all “well-pleaded factual allegations” in the complaint. Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Dismissal for failure to state a claim “is proper if there is a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” Conservation Force v. Salazar, 646 F.3d 1240, 1242 (9th Cir.2011).

To survive a motion to dismiss, a complaint's [f]actual allegations must be enough to raise a right to relief above the speculative...

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